ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-5100
DATE: 20140908
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Ryan McKay
Applicant
Sarah Fountain, for the Crown
Paul Lewandowski, for the Applicant
HEARD in Ottawa: August 5, 2014
REASONS FOR DECISION ON VOLUNTARINESS OF VIDEO STATEMENT
R. Smith J.
[1] The Applicant, Ryan McKay, is charged with sexual assault and unlawful confinement of the Complainant M.P.. The offences are alleged to have occurred on August 7, 2012.
[2] On August 24, 2012, the Applicant made statements to the police in a video recorded interview with Detective Carolyn Botting. A voir dire was held to determine the voluntariness of Mr. Mckay’s video statements to the police.
[3] The Applicant submits that the Crown has not met its onus of proving beyond a reasonable doubt that the Applicant made the statements voluntary to Detective Botting makes the following submissions:
a) The Detective made statements that amounted to an inducement when she told the Applicant that after hearing another arrested party’s side of the story, she had been convinced and released him. The Detective also told the Applicant that she was “not saying that it is gonna happen to you”;
b) The Detective undermined the advice of the Applicant’s legal counsel by stating that he did not have to follow his lawyer’s advice to remain silent; and
c) The Detective reversed the onus by presenting a scenario and asking the Applicant to tell her if she was wrong about any of the details.
[4] The Crown makes the following submissions:
a) The Detective never promised or offered to release the Applicant if he made a statement, and clearly told him that she was not promising to release him if he gave her a statement;
b) When the statement is considered as a whole, there was no inducement and no quid pro quo offered by the Detective; the inference of a possible release if he gave a statement was not strong enough to raise a reasonable doubt about whether the will of the Applicant had been overborne; and
c) The Applicant maintained his right to silence and did not give an inculpatory statement, which confirms that he understood his right to remain silent and that his will was not overborne.
Test
[5] A contextual approach must be taken to respect the goals of protecting the rights of accused persons from oppressive questioning which overcomes the freedom of will of the same, without unduly limiting society’s need to investigate and solve the crime. In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at para. 33 the Supreme Court quoted the following from R. v. Precourt (1976), 1976 692 (ON CA), 18 O.R. (2d) 714 (C.A.) at p. 721:
Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation… . On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible… .
[6] A statement to a person in authority is presumptuously inadmissible unless the Crown proves beyond a reasonable doubt that the statement was voluntary.
[7] In R. v. Singh, 2003 BCSC 2013 at paras 19-28 (upheld. 2007 SCC 48, [2007] S.C.J. No. 48), the trial judge found that the accused was well aware of his rights. The officer’s conduct in keeping him in the room and continuing to ask questions was not so oppressive as to overbear the accused’s will. The conduct did not break down his mind or undermine his right to remain silent.
Application to the Facts
a) Suggestion of Possible Release
[8] In this case, the Detective raised the possibility that she would release the Applicant if he told her his side of the story. This could be considered an inducement, even with her additional advice that she was not promising to release him if he gave her a statement, depending on the circumstances of the Applicant. In this case, the Applicant has a criminal record and had been previously experience being interviewed by the police, he had already spoken with his lawyer, and he understood his right to remain silent. From viewing and listening to the video, I find that the Detective’s questioning did not overbear the Applicant’s will.
[9] This finding is supported by the fact that the Applicant did not make any admission of criminal wrongdoing in the interview with the Detective. When he was questioned about the victim’s allegation that she was restrained with duct tape, he maintained his right to silence and stated that his lawyer would deal with this allegation.
b) Suggestion to Ignore his Lawyer’s Advice
[10] The Detective told the Applicant that he did not have to follow his lawyer’s advice. The Applicant responded that he was aware of this but did follow his lawyer’s advice and maintained his right to remain silent would the allegations involved criminal wrongdoing.
[11] I find that the Applicant’s will was not overborne in any way by the suggestion that he did not have to follow his lawyer’s advice. The Applicant was aware of this, but followed his lawyer’s advice in any event. The Detectives questioning on this issue was limited to one suggestion and was not oppressive in the circumstances.
c) Reversal of Onus
[12] In the interview the Detective presented a scenario to the Applicant and told him to “stop me if I’m wrong.” The Applicant submits that this approach amounts to misadvising the Applicant that his silence will constitute full agreement with her rendition of events.
[13] I find that the Detective’s questioning in this manner does not amount to misadvising the Applicant. The Applicant was aware of his right to remain silent and exercised that right when the factual situation suggested by the Detective described the commission of a criminal offence, such as when she suggested that the Applicant applied duct tape to the Complainant’s hands and ankles. The onus remains on the Crown to show beyond a reasonable doubt that the statement was given voluntarily, however I find that based on the whole interview as recorded in the video and the Applicant’s assertion of his right to silence, that his will was not overborne by this approach to questioning by the Detective.
Disposition
[14] For the reasons given above, I find that the questioning by the Detective did not overbear the Applicant’s will and as such find that the Crown has proven beyond a reasonable doubt that the statements he made to Detective Botting in the video recorded interview were made voluntarily.
R. Smith J.
Released: September 8, 2014
COURT FILE NO.: 12-5100
DATE: 20140908
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
Ryan McKay
Applicant
REASONS FOR decision on voluntariness of video statement
R. Smith J.
Released: September 8, 2014